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A consumer residing in North Carolina opens a credit card account with a national bank, "signing" three separate agreements: (1) a cardmember agreement, (2) an online service agreement, (3) an electronic communication consent agreement.

The cardmember agreement contains a broad choice-of-law provision stating "This agreement and your account will be governed by federal law, as well as the law of Delaware, and will apply no matter where you live or use this account."

The online service agreement also contains a broad provision stating "This Agreement and its enforcement shall be governed by the laws of the State of New York, without regard to any choice of law provision, except for section 5-1401 of the New York General Obligations Law, which does apply, and shall inure to the benefit of our successors and assigns, whether by merger, consolidation, or otherwise. The account(s), products and services accessed via the Online Service shall be governed by laws of the applicable account agreements."

The electronic communication consent agreement does not contain a choice-of-law provision.

Consumer sues in NC district court and wishes to argue a state UDAP violation. While most states have UDAP statutes, they vary in their consumer-friendliness. The unfair act involves non-receipt of paperless billing statements -- which could arguably arise under either of the three agreements.

Which state UDAP statute applies?

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The provisions of the credit card account agreement will be governed by Delaware law, except to the extent to North Carolina public policy overrides it.

The provisions of the online services agreement will be governed by New York law, except to the extent to North Carolina public policy overrides it.

The electronic communications agreement will be governed by the law of the place with the most significant connection to any disputed issues arising under it. It could also be considered to be an extension of the online services agreement rather than a separate agreement.

UDAP is an acronym referring the state deceptive trade practices acts.

The unfair act involves non-receipt of paperless billing statements.

Even with this level of detail, I don't believe it is possible to know in advance which of the agreements is implicated and which state's laws will be held to apply (or if the differences between the laws of the candidate states is even material on the issue in question).

These issues are decided on a case by case basis when there is a mishmash of facts and the outcomes are not terribly predictable.

It also isn't obvious that there is a provision covering the conduct in question in any of the three potentially relevant states. The Delaware Deceptive Trade Practices Act doesn't appear to clearly apply to financial services at all. New York's application to financial services is quite narrow and subject to an exception for conduct in conformity with federal law. A failure to provide an invoice, without more, isn't necessarily a deceptive trade practice at all.

All in all, there isn't a straightforward or easy answer to this question that can be reached from the information provided.

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    "All in all, there isn't a straightforward or easy answer to this question that can be reached from the information provided." Understood. I am more interested in the general reasoning than in a specific answer for very specific facts -- which you have graciously provided. Thanks. Oct 21, 2021 at 4:45

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